Look for Kagan health reform fight

At some point during Elena Kagan’s confirmation hearing, Republicans on the Senate Judiciary Committee seem poised to tout the lawsuitschallenging the health care reform law, filed by 20 GOP state attorneys general — and one Louisiana Democrat.

According to the Republican National Committee website, the party’s No. 1 issue is to “rigorously question Kagan” about where she stands on the “variety of legal challenges [facing] health care overhaul.”

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Sen. Jeff Sessions (R-Ala.), the judiciary committee’s ranking Republican, said in his opening statement, “The president and Congress have taken over large sectors of our nation's health care system.” He called on the courts to rectify this problem,”Americans want a judge that will be a check on government overreach, not a rubber stamp.”

Earlier, previewing his agenda for the hearing, Sessions had coyly observed “the court's interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year.”

If Sessions and his colleagues play this squelch-Obamacare-in-court card, Democrats might as well call and raise. They should seize this opening to spotlight the stealth agenda behind these GOP lawsuits.

Technically, the cases challenge just the health reform law. But the radical legal theories they advance can extend much further. If accepted by the Supreme Court, these theories could shatter the constitutional foundations of landmark programs like Social Security, Medicare, civil rights and environmental protections.

“Certainly,” Virginia Attorney General Ken Cuccinelli has emphasized, “we view our lawsuit as being not merely about health care.”

Striking down that law, Cuccinelli said, “is actually secondary to the real important aspect of the case,” which “is to essentially define the outer limits of federal power.”

Sessions and other Republican Senate leaders recently disavowed Rand Paul’s distaste for half-century-old Civil Rights Act protections. But the health reform lawsuits they support, in effect, comprise a second front in which Paul and his libertarian allies hope to bypass the political majorities that overwhelmingly oppose their rollback agenda.

Legal experts, including prominentconservatives, scoff at the merits of Cuccinelli’s case and of Florida Attorney General Bill McCollum’s similar challenge on behalf of 20 other Republican top state lawyers.

Yet if the Supreme Court’s right-leaning majority grants the opponents’ claims, or any part of them, then challenges might be filed against other major statutes.

Logically, the next domino targeted could be the guarantees against private discrimination that Paul discussed. For the legal argument devised to strike down health reform could, if accepted, imperil those other laws.

The current challenges principally focus on the heath care law’s requirement that individuals, who can afford it, carry minimum levels of health insurance — known as the individual mandate.